Domestic violence is one of the most commonly prosecuted criminal offenses in Los Angeles criminal courts.
Prior to the O.J. Simpson trial, there was a widespread perception that law enforcement was not taking domestic violence incidents which resulted in minor or no injuries seriously enough and were allowing alleged domestic abusers to get off with a warning.
It is fair to say that the pendulum has swung significantly in the other direction. Most people arrested for domestic violence have no prior criminal record. Police officers responding to a 911 domestic violence call:
- don't have broad discretion whether or not to make an arrest;
- Any allegation that domestic violence occurred will almost certainly now result in an arrest.
When police respond to a domestic violence call and arrive at the scene, they will take statements from both sides and determine whether there are any visible injuries.
They will also decide who was the primary aggressor and arrest them immediately. It should be noted, however, it's not uncommon for both sides to be arrested on suspicion of domestic violence.
The defendant will be transported to jail and will typically have to post bond to get released, even if they have no prior criminal record. After posting bond, they will be provided with a court date for their arraignment.
We have represented numerous individuals who actually summoned law enforcement by calling 911 only to find themselves arrested because neither party wished for anyone to be arrested or prosecuted, but law enforcement felt duty bound to arrest someone.
For a first-time arrestee accused of domestic violence, the process can be opaque and intimidating. This article seeks to give insight into some of the common charges associated with first time domestic violence cases and some of the likely consequences.
To give readers useful information for a first offense domestic violence, we are providing a review below.
Determining Type of Charges to File
The major distinguishing feature in domestic violence prosecutions is whether or not the alleged victim suffered any bodily injury.
Even an extremely minor injury, if it results in a visible mark, can justify a felony domestic violence prosecution under California Penal Code Section 273.5, which is a “wobbler,” meaning it can be prosecuted as either a felony or a misdemeanor. PC 273.5 is known as corporal injury to a spouse.
If it prosecuted as a felony, the defendant, if convicted, potentially faces state prison time. If prosecuted as a misdemeanor, a conviction for Penal Code Section 273.5 carries only county jail time, not prison.
In cases where no visible marks were left on the body of the alleged victim, the more common criminal provision which is used by the government is Penal Code Section 243(e)(1), domestic battery. A PC 243 (e)(1) prosecution:
- does not require that the alleged victim was injured in any way;
- any “offensive” touching, meaning
- a non-consensual, non-privilege touching,
- no matter how brief or how minor, is sufficient to justify a misdemeanor prosecution.
Penal Code 243(e)(1) is not a wobbler. It is always a misdemeanor which exposes the defendant, if convicted, to county jail time.
Other common first offense domestic violence charges include elder abuse under California Penal Code 368 and child endangerment under Penal Code 273(a).
Penalties for First-Offense Domestic Violence
In the majority of first-offense domestic violence prosecutions, the sentence sought by government will not include significant custody time.
The exception, of course, is in cases where substantial injuries were inflicted on the alleged victim.
In a relatively minor case, however, probation will often result. The conditions of probation in a domestic violence case are unique compared to other offenses. The court will impose a:
- 52-week domestic violence counseling course,
- a special $500 fine applicable only to domestic violence cases, and
- other conditions which are designed to address the underlying domestic violence issue with the defendant.
The judge might also order substance abuse counseling, anger management classes, perform community service hours, or even serve some time in jail.
While you are on probation for a domestic violence conviction, you are expected to attend all the ordered classes, keep all counseling appointments, and successfully complete all of them on time.
There are other restrictions for domestic violence probation, such as you will be prohibited from owning, possession, or having any type of custody or control of a firearm.
Another unique aspect of domestic violence prosecutions is the issuance of a criminal protective order in almost every case.
This protective order can come as a shock particularly to first-time arrestees who regarded the incident that led to their arrest as a simple misunderstanding.
Even over the explicit objection of the alleged victim, courts routinely issue a full no-contact stay-away order to domestic violence defendants appearing at arraignment, which is the first court date.
The hardship imposed by the issuance of these orders is often substantial. If the defendant and the alleged victim cohabitate, the defendant is forced to move out and find new housing.
If they share children, the protective order can serve as a de facto loss of parental rights. In the later case, at least, there is sometimes consideration given to the right of the accused to continue maintaining a relationship with their children.
A lesser form of the protective order, known as a “peaceful contact,” criminal protective order may be issued in these cases.
Alternatively, if there is already family or dependency court litigation ongoing between the parties, the criminal court may elect to have the protective order follow any other valid orders issued by the civil court on the assumption that the family or dependency proceedings will result in an appropriate arrangement involving child custody, visitation, and peaceful exchange of the child or children.
Los Angeles Domestic Violence Lawyer
Domestic violence cases are treated extremely seriously by the courts, prosecuting agencies, and law enforcement agencies.
If you or a family member is under investigation for, has been arrested for, or has already been charged with a domestic violence offense under California law, contact our team of experienced criminal defense attorneys immediately.
Through a prefiling intervention, we can help you maximize the chances of a positive outcome in your first time domestic violence case before it goes to court.
Eisner Gorin LLP is a top-ranked criminal defense law firm with a team of highly experienced attorneys that a have a long record of success.
We are located at 1875 Century Park E #705, Los Angeles, CA 90067 and next to the Van Nuys Court at 14401 Sylvan St #112 Van Nuys, CA 91401.
Contact us to review the details of your case at (310) 328-3776.